YONKERS PLATE GLASS, INC.

OSHRC Docket No. 14204

Occupational Safety and Health Review Commission

January 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Max Felsenstein, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); See also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because respondent subcontractor did not create or cause the alleged violation and was not otherwise responsible therefor. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 and 4147, July 28, 1976 (dissenting opinion); Secretary v. Anning-johnson Company, OSAHRC Docket Nos. 3694 and 4409, May 12, 1976 (concurring and dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Alfieri's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, [*3] Regional Solicitor, U.S. Department of Labor and Jack R. Fisher, for complainant

Max Felsenstein, for respondent

Alfieri, Judge.

STATEMENT OF THE CASE

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) contesting a serious citation issued on July 1, 1975 by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citation alleges that an inspection made on June 9, 1975, of respondent's workplace, located at the construction site of the eight 10-story apartment housing project, Mill and Water Streets, Newton, New Jersey, showed that the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)) because it failed to comply with the occupational safety and health standard promulgated by the Secretary under section 6 of the Act (29 U.S.C. 655) and codified in 29 C.F.R. 1926.500(d)(1).

The standard cited provides as follows:

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or [*4] the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

The alleged violation is described as follows:

"Open sided floor - fourth floor - Section A - 8 - 10 story building was not guarded by standard railing or equivalent exposing employees to a fall of approximately 40 feet."

Immediate abatement was called for and the proposed penalty is $600.00.

ISSUES

1. Whether respondent violated 29 C.F.R. 1926.500(d)(1).

2. If respondent violated 29 C.F.R. 1926.500(d)(1), whether the violation was serious.

3. Whether the penalty proposed is appropriate.

SUMMARY OF RELEVANT EVIDENCE

It was stipulated between the parties at the hearing that respondent Yonkers Plate Glass, Inc., is a New York corporation located at Yonkers, New York; it is engaged in a business affecting commerce; it is a medium size corporation with a net worth of approximately $2,000,000.00, and its average [*5] daily number of employees is 30 to 35; respondent has no prior history of violations of any law or regulations affecting the safety or health of its employees.

On June 9, 1975, at 8:30 in the morning, David Sellers, Jr., a compliance officer for the Occupational Safety and Health Administration arrived at the construction site of the Millwater Housing Project in Newton, New Jersey (Tr. 18, 38). He parked his car and walking towards the building which was about 150 feet away (Tr. 18), he saw two men working on a 4th floor balcony of "A" wing of the building (Tr. 11) about 40 feet high (Tr. 14, 18), but he could not tell what they were doing (Tr. 18). However, when he came within 20 to 30 feet of the building, he observed that the workers were installing metal trim on the reinforced concrete structure (Tr. 38, 39). The men were on the balcony 6 feet back from its edge without lifelines or safety belts (Tr. 11). He later testified the men were within 3 or 4 feet of the balcony's edge (Tr. 12). The balcony was unguarded, had no guardrails, midrail or toeboard. He observed the men, from the ground, for about five minutes (Tr. 12, 38).

The compliance officer contacted Richard Deyette, [*6] assistant superintendent for RWB Associates, the general contractor. Together they went to the 4th floor where the compliance officer had observed the men working. When they arrived no one was there (Tr. 10, 20, 35). However, the compliance officer observed electrical tools inside of the window wall line (Tr. 10, 16), and some pieces of the metal trim on the balcony itself (Tr. 16). He also saw some unfinished metal trim work in the opening separating the building and the balcony (Tr. 13). When the compliance officer asked Deyette who were the men that had been working there, Deyette stated they were employees of Yonkers Plate Glass and that he would locate them on the floor and bring them to that particular location (Tr. 10). Deyette returned with Charles Durst and two other men. Durst said he was the respondent's foreman and that the men with him were the employees who were working on the balcony (Tr. 11, 27, 41). When the compliance officer advised Durst that the men were working under conditions that were in violation of the Act, he responded that the responsibility for perimeter guarding was the general contractor's.

The compliance officer further testified that he deemed [*7] the violation to be serious because an accident occurring due to the violation would probably result in serious or fatal injury to an employee. He considered the probability of an accident high with men working close to the edge tripping and falling off the balcony.

In determining the proposed penalty, credit was given for good faith, size and history. A penalty of $600.00 was recommended.

On cross-examination the compliance officer, Sellers, stated that he had no independent knowledge that the men he observed on the balcony were respondent's employees. This information he first got from Durst (Tr. 20). It was also brought out that he saw a cable barrier, in a slack condition between the floor and the balcony (Tr. 24) and that at no time did he see building materials being moved into the building (Tr. 34).

Dalton Walker, owner and president of Yonkers Plate Glass, Inc., explained that his company was under contract with Crosley Window, a manufacturer, to install the windows and balcony doors Crosley sold to the general contractors, RWB Associates. Walker acknowledged that Durst was an employee of the respondent but said that Dave Abelman was the foreman and not Durst (Tr. [*8] 50). On the day of inspection, June 9, 1975, Walker arrived at the construction site about 10:00 a.m. or 11:00 a.m. (Tr. 45); he was unsure as to whether he went to "B" or "C" wings of the project (Tr. 57); he checked the rear areas where his men were working (Tr. 49), arriving on the 4th floor about 11:30 a.m. or 11:45 a.m. (Tr. 56); he neither saw the compliance officer nor was told by his workers, with whom he spoke on that day, that an inspection was made (Tr. 56). Walker further testified that the installations that his men were doing neither required them to be out on the balconies (Tr. 47) nor did nay of the work relate to the balconies (Tr. 44). The witness concluded his testimony by stating that he did not know what section of the building was being discussed (Tr. 57) and was not sure which balcony was referred to in the case (Tr. 59).

DISCUSSION

The preponderance of credible evidence supports the complainant's allegation that the respondent was in serious violation of 29 CFR 1926.500(d)(1) in that it failed to provide a standard railing or equivalent on the open sided balcony of the fourth floor in the "A" wing of the building where its employees were working, as [*9] little as three feet from the edge (Tr. 12). The testimony of respondent's president Dalton Walker does not refute, in any way, that of the compliance officer. On the day of the inspection Walker not only did not arrive at the jobsite until after the inspection was completed but on that day he did not go to "A" wing where the inspection was made (Tr. 57). The lack of probative value of respondent's evidence is obvious.

The citation charged the respondent with a serious violation which, under the applicable provisions of Section 17(k) of the Act (29 U.S.C. 666(j)) exists if there is a substantial probability that death or serious physical harm could result from the violation and the employer knew, or with the exercise of reasonable diligence, could have known of the presence of the violation. Here the employees were working in an unprotected area at a height of about 40 feet. In all probability a fall would result in a serious if not fatal injury.

Relative to the element of knowledge of the existence of the violation, the Secretary has established that Durst, the respondent's foreman, was present when the inspection took place and identified the respondent's employees who [*10] were observed on the balcony by the compliance officer. Even assuming that Durst was not a foreman as contended by respondent, a contention that I reject, Walker's own testimony establishes that one of his foremen, Dave Abelman, was on the jobsite. The "knowledge" element for a serious violation under Section 17(k) of the Act (29 U.S.C. 666(j)) is satisfied by imputing to respondent the foreman's knowledge of the existence of the violation (Secretary v. Floyd S. Pike, Inc., 15 OSAHRC 302 (1975)). It must be concluded that respondent is charged with the requisite knowledge. The violation was properly characterized as serious.

The respondent contends that the violation is nonserious and further that it is not responsible for its abatement. In support of its position, respondent cites Anning-Johnson Company v. Secretary of Labor, 516 F.2d 1081 (7th Cir. 1975). n1 There the Court ruled that subcontractors, like the respondent, involved in a multi-employer construction project could not receive citations or be held liable for penalties under the Act for nonserious violations of promulgated standards to which their employees were exposed, but which the subcontractors [*11] neither created nor were responsible for pursuant to the terms of their contract. Having found that the evidence supports the charge that the violation is serious it is apparent that the Anning-Johnson Company case is not applicable. n2

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n1 In addition respondent cites Secretary v. Empire Roofing & Insulation Co., No. 5192 (8/20/75) which also concerned nonserious violations.

n2 Even if the evidence established a nonserious violation the Anning-Johnson Company case would not be binding upon this Judge since it is a case decided in the 7th Circuit whereas the subject case is in the 2nd Circuit. (Secretary v. K&B Sheet Metal, Inc., No. 14395)

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Having determined that respondent violated 29 CFR 1926.500(d)(1), as alleged, we turn next to the question of the penalty to be assessed. Section 17(j) of the Act (29 U.S.C. 666(i)) provides that in assessing penalties due consideration shall be given to the appropriateness of the amount with respect to the size of the business, the gravity of the violation, [*12] the good faith othe employer, and the history of previous violations. I have considered all factors. In so do. I note that the record shows that respondent had two employees working on the balcony. There are no facts as to the length of time they were there other than the five minutes they were observed by the compliance officer. Considering the brief exposure to the hazards, a penalty of $300.00 is considered appropriate.

All motions not previously decided are denied.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the entire record, supports the following:

FINDINGS OF FACT

1. That respondent, Yonkers Plate Glass, Inc., was an employer maintaining a place of employment at the construction site of the Millwater Housing Project, Newton, New Jersey.

2. That two of respondent's employees were working in "A" wing on the fourth floor balcony about three feet from the edges.

3. That the balcony was approximately [*13] 40 feet above the ground level and was not guarded by a standard railing or equivalent.

4. That the two employees working on the said balcony were exposed to the hazard of falling approximately 40 feet which could result in death or serious injury.

5. That the respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the hazardous condition.

CONCLUSIONS OF LAW

1. Respondent on June 9, 1975, was in violation of section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with 29 CFR 1926.500(d)(1).

2. The violation of 29 C.F.R. 1926.500(d)(1) was a serious violation within the meaning of section 17(j) of the Act (29 U.S.C. 666(i)).

The citation is affirmed and the penalty assessed is in the sum of $300.00.

SO ORDERED.

EDWARD V. ALFIERI, JUDGE, OSAHRC

Dated: March 18, 1976

New York, New York